Federal Court Decisions

     T-172-97

Ottawa, Ontario, this 27^th day of March, 1997.

Before: Mr. Richard Morneau, Esq., Prothonotary

Between:

     MOLSON BREWERIES, A PARTNERSHIP,

     Appellant,

     and

     LABATT BREWING COMPANY LIMITED,

     Respondent.

     REASONS FOR ORDER

     This is a motion by the respondent for leave under rule 704(6) of the Federal Court Rules (the Rules) to cross-examine an affiant (Mr. Gene Lewis) on a specific paragraph of said affidavit submitted by the appellant in support of its Notice of Appeal from a decision of the Registrar of Trade-Marks.

     The parties to this case are familiar with the general principles applicable to such a motion.

     To obtain leave to cross-examine the said affiant, the respondent must basically show that there are special grounds exempting it from the general scheme of rule 704, which provides that summary appeal proceedings under section 56 of the Trade-Marks Act, R.S.C. 1985, c. T-13 are resolved by assessing affidavits filed by the parties without cross-examination on those affidavits (see McDonald's Corp. v. Coffee Hut Stores Ltd. (1993), 47 C.P.R. (3d) 207, at pages 208-209, and more specifically Axelroad v. Giovanni Management Canada Ltd. (1988), 23 C.P.R. (3d) 247, to which it refers).

     It will be up to the judge called upon to determine the merits of the appellant's Notice of Appeal to weight the sufficiency of the appellant's evidence and, especially, appellant's evidence under paragraph 22 of Mr. Lewis's Affidavit.

     In the meantime, I do not feel that because said paragraph fails to incorporate the particulars and explanations mentioned by the respondent, the resulting situation can be characterized as so ambiguous as to require a cross-examination for the purposes of the proceedings or the merits.

     This motion by the respondent will accordingly be dismissed. Similarly, respondent's request for an extension of time within which to file and serve its reply under rule 704(4) will be dismissed.

     Although no cross-examination will be ordered, I am of the view that the determination of the date of the licence referred to in paragraph 22 aforementioned is an element of information that could prove to be relevant to the determination of the appellant's appeal. Consequently, the appellant will be required to provide in writing respondent's counsel with said date. The appellant will be required to execute itself in that regard before 5:00 P.M. on April 1, 1997.

                             Richard Morneau